Copyright Supports Injunction Against ISP

(CN) – Internet service providers can be ordered to block copyright-infringing websites if the rights of users and the ISPs are also protected, Europe’s highest court ruled Thursday. Two Austrian film companies – Constantin Film Verleih and Wega Filmproduktionsgesellschaft – claimed that website kino.to illegally streams their copyrighted films to Internet provider UPC Telekabel Wien’s users. While UPC has no direct connection to the website, the film companies sought a court order forcing the ISP to block its users from the website. A trial court granted the injunction, and an appeals court affirmed, but neither specified how UPC should carry out the block. The Austrian Supreme Court asked the Court of Justice of the European Union to advise whether the injunction against UPC meshed with EU copyright law, and whether the Internet provider can be considered an intermediary to the infringement. Having considered an opinion by its adviser this past November, the EU high court held Thursday that UPC is a party to copyright infringement when it allows its users to access protected material from a third party. “Such a conclusion is borne out by the objective pursued by EU copyright law,” the Luxembourg-based high court wrote. “To exclude internet service providers from the scope of the law would substantially diminish the protection of rightholders sought by that directive.” Despite UPC’s argument otherwise, EU law does not require a contractual relationship between UPC and kino.to for UPC to be considered an intermediary to infringement. The film companies also need not prove that UPC’s customers actually accessed the protected material on kino.to for an injunction to stick, the court added. “EU law requires that the measures which the member states must take in order to conform to that directive are aimed not only at bringing to an end infringements of copyright and of related rights, but also at preventing them,” the court wrote. “Such a preventive effect presupposes that the holders of a copyright or of a related right may act without having to prove that the customers of an internet service provider actually access the protected subject-matter made available to the public without their agreement.” National courts must nevertheless strike a balance between copyright holders, the business interests of Internet providers and the right to information enjoyed by EU citizens, according to the ruling. In this case, UPC deserves the chance to implement its own block, targeted only at kino.to to avoid inconveniencing users, the court said. “Consequently, even though the measures taken when implementing an injunction are not capable of leading, in some circumstances, to a complete cessation of the infringements of the intellectual property right, they cannot however be considered to be incompatible with the requirement that a fair balance be found between all applicable fundamental rights, provided that (i) they do not unnecessarily deprive internet users of the possibility of lawfully accessing the information available and (ii) that they have the effect of preventing unauthorized access to protected subject-matter or, at least, of making it difficult to achieve and of seriously discouraging internet users who are using the services of the addressee of that injunction from accessing the subject matter that has been made available to them in breach of the intellectual property right,” the court concluded.